US Supreme Court Building in Washington DC
The US Supreme Court Building columns with the words Equal Justice Under Law on the building.

A California federal court granted class certification to businesses accusing the US government of unlawfully rejecting market research analysts’ H-1B visa petitions, certifying a nationwide class of employers who say US Citizenship and Immigration Services systematically misreads the US Department of Labor’s definition of a market research analyst to mean that the position doesn’t qualify as a specialty occupation. Due to the pendency of a newly announced USCIS  interim final rule narrowing the definition of a “specialty occupation” when evaluating H-1B visa applications to those with narrowed degree requirements, U.S. Magistrate Judge Susan van Keulen limited to companies that file visa petitions between January 1, 2019, and December 6, 2020, as the rule is slated to take effect December 7, 2020.  If the interim final rule, which is the subject of several lawsuits, is enjoined, plaintiffs have indicated they intend to request expansion of the class to encompass petitions filed as of December 7.

The class action represents the latest challenge to attempts by USCIS to narrow the definition of specialty occupation to exclude blanket occupations, where, as in the case of market research analysts, the government indicates that a degree in a narrow subspecialty is not “normally” required by employers.  Continue Reading Newly-Certified Class Represents Latest Challenge to USCIS’s Blanket Repudiation of Occupation As H-1B Specialty

The UK Government has released a Statement of Changes in Immigration Rules, detailing new provisions related to the country’s Post-Brexit immigration system. Although the new system will go into effect on January 1, 2021, the Statement confirms that new applications under the Points-Based Immigration System (PBIS) will be accepted beginning December 1, 2020. For a detailed review of the Post-Brexit PBIS, please visit our blog post here.

The October 22 Statement codifies and establishes a legal framework for the immigration policies that have been published over the past several months. As discussed in our previous blog posts, freedom of movement between the European Union and the United Kingdom will end on January 1, and all non-UK nationals, with few exceptions, will be subject to the new immigration rules. Irish citizens, for example, will have the right to enter, reside, live, and work in the United Kingdom without obtaining permission and without restrictions on their stay.

The new system is intended to simplify the United Kingdom’s immigration rules, level the playing field for the immigration of all nationalities, and make the UK immigration system generally more accessible and transparent. In doing so, the Statement presents a series of appendices that describe the requirements for each immigration category. The following sections provide details on a number of key provisions included in the Statement.

I.    The Skilled Worker Route.

As of December 1, 2020, the Tier 2 (General) Route will be discontinued, and the UK Government will begin accepting applications through the new Skilled Worker Route. Individuals who have previously obtained entry clearance or permission to stay through the Tier 2 (General) Route and are seeking to extend their status can apply for further leave or settlement through the Skilled Worker Route.   More details on this route and the PBIS can be found in our previous blog post.

The Skilled Worker Route sits at the center of the new PBIS, effectively replacing the current Tier 2 (General) Route. This route is available for all prospective workers that are outside of the UK resident labor market who are seeking employment in the United Kingdom as “skilled workers.” UK employers seeking to hire these workers must obtain a sponsor license from the Home Office.

II.   The Intra-Company Routes.

Current requirements for graduate trainees will remain largely intact. However, the new rules have made several significant changes to the previous ICT Routes. The new system removes the twelve-month re-entry bar (cooling off period) for ICT visa holders who have departed the United Kingdom. These individuals will instead be afforded ICT leave for up to five years in any six-year rolling period or up to nine years in any ten-year period for high earners. High earners will be exempt from the twelve-month employment requirement prior to entering the United States and will also be able to “switch” into the ICT Route after already entering the United Kingdom under another route. The salary threshold for high earners will also be reduced to £73,900.

The statement establishes two Intra-Company Routes, replacing the Tier 2 (ICT) Routes: the Intra-Company Transfer (ICT) Route and the Intra-Company Graduate Trainee Route. The ICT Route remains available to “established workers who are being transferred by the business they work for to do a skilled role” in the United Kingdom. The Intra-Company Graduate Trainee Route is for workers being transferred to the United Kingdom as part of a structured graduate training program.

III.   Hong Kong British National Overseas Route.

The Hong Kong British National Overseas (BN(O)) Route is for BN(O) citizens who are “ordinarily resident in Hong Kong or the United Kingdom” as well as their dependent partners and children. Individuals applying for entry clearance through this route must be ordinarily resident in Hong Kong at the date of the application. This route grants permission to the applicant for a period of either thirty months or five years, allows for work and study in the United Kingdom, and serves as a route to settlement.

IV.   Changes to the Results of Evidenced Criminality.

The new rules require the refusal of applications for entry clearance, permission to enter, or permission to stay for applicants with certain criminal backgrounds. These instances include applicants who (1) have been convicted of a criminal offense for which they received a custodial sentence of twelve months or more, (2) are “persistent offenders,” or (3) have committed a criminal offense that caused “serious harm.” The new rules also require the cancellation of granted permissions for individuals with any of these backgrounds. For lesser offenses than those above, individuals may also be discretionarily refused entry clearance, permission to enter, or permission to stay, and existing entry clearance or permission may be discretionarily cancelled as well.

V.   Additional Information for Employers.

As the Home Office will be publishing additional guidance regarding the administration of the new immigration rules, please continue to follow our updates on or blog, The Mobile Workforce.

As our previous blog post mentions, employers who will be required to secure a sponsorship license from the Home Office should begin preparing those applications as soon as possible. The UK Government has implemented an option for expediting these applications that will become available on November 12, 2020. Employers seeking to leverage the expedited option will be required to pay an additional £500 expedited processing fee along with the application fee.

 

After the normalization of ties between the UAE and Israel through the announced peace agreement – dubbed the “Abraham Accord” – on August 13, 2020, the two countries have now agreed to establish a visa waiver program for their citizens.  The program will allow the citizens of each country to visit the other without going through a visa application process.  This program marks the UAE as the first country in the Middle East to allow visa-free travel with Israel.

 In that spirit, Etihad Airways, Abu Dhabi’s flagship airline based out of the UAE capital, announced earlier this week that a total of twenty-eight weekly flights are expected to operate between the UAE and Israel.  The first commercial flight to Israel landed at Ben Gurion International Airport in Tel Aviv on October 19, 2020, and is expected to return to Abu Dhabi later in the week.

 The two countries also agreed to establish a US$3 Billion “Abraham Fund” to promote economic cooperation and development in the region.  The fund is expected to sponsor investment project opportunities and aims to improve agriculture productivity in the Middle East in cooperation between the two countries.

 Mayer Brown’s Middle East and Global Mobility practices continue to monitor these important developments in the region.  Please see our alert from September 2020 on the Abraham Accord:

 

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One of the top 10 issues affecting US immigration in the next 100 days will depend on the outcome of lawsuits challenging an overhaul of the eligibility, wage levels, and employment rules for the H-1B visa category, which governs the hiring of highly-skilled workers by US employers across industries. Today a leading group of business associations, including the US Chamber of Commerce, National Association of Manufacturers, Bay Area Council, and National Retail Federation, as well as number of educational institutions and associations, filed a lawsuit in the Northern District of California against the Departments of Homeland Security (DHS) and Labor (DOL) challenging the Strengthening the H-1B Program rule and the Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States rule. The suit was filed in the Northern District of California.

Continue reading on Mayer Brown’s COVID-19 Response Blog.

The deadline for Person of Indian Origin (PIO) cardholders to apply for Overseas Citizen of India (OCI) cards at Indian Consulates around the world is now December 31, 2021, extending the previous deadline of September 30, 2020. Applications are typically processed within four to five business days. However, PIO cardholders are urged to register for their OCI cards as soon as possible.

In 2015, the Indian government merged its PIO and OCI programs. Although all PIO cardholders are considered OCI cardholders in the eyes of the Indian government, PIO cardholders were advised to apply for machine-readable OCI cards to continue cross-border travel. After the new deadline, PIO cards will be invalid and cardholders who have not applied for their OCI cards may be required to obtain a visa or exit permit to travel across India’s borders.

Additionally, the Bureau of Immigration will now accept as a valid travel document all PIO cards, along with a valid foreign passport, until the new deadline. During the interim, if the International Civil Aviation Organization invalidates handwritten PIO cards, PIO cardholders may be required to obtain an appropriate visa from a relevant Indian Mission or Immigration Check Post in order to travel to India.

Information and guidance on the process of converting PIO cards to OCI cards can be found here.

Executive Summary

The Trump Administration has introduced long-anticipated changes to the H-1B visa program for highly-skilled foreign workers, aimed at tightening eligibility for STEM talent working at major US employers, including by imposing a rigid requirement that any job offered to an H-1B worker require a single specific degree in a subspecialty, and that each H-1B candidate have that specific degree to qualify.

The changes, some of which come under immediate effect and all of which will likely face legal challenges, would make it tougher for applicants to qualify for an H-1B visa and significantly more expensive for employers to sponsor them for H-1Bs or for green cards.

The changes also will create high barriers for vendor partners to provide talent to major customers, as both the expense of new wages and specific requirements for vendors to renew their H-1Bs annually (or more frequently if statements of work provide for shorter periods), raise their costs substantially.

Specifically, the two new rules impose the following new requirements.

  • New wage requirements imposed immediately.  Effective today, the Department of Labor (DOL)’s “Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States” rule makes it much more expensive for US employers to sponsor foreign students and workers in the H-1B, H-1B1, and E-3 nonimmigrant visa categories, as well as for immigrant visas (green cards) in the second and third employment-based classifications (EB-2 and EB-3) categories for workers who must undergo the labor market testing process known as PERM.  Prevailing wages in some occupational categories will increase nearly 60%.
  • H-1B specialty occupation definition narrowed and new restriction on off-site resources imposed. Effective December 7, 2020, the DHS “Strengthening the H-1B Non-immigrant Visa Classification Program” rule will implement a novel definition of a “specialty occupation.”  The new definition will restrict the H-1B category to individuals holding a bachelor’s baccalaureate or higher degree “in a directly related specific specialty, or its equivalent,” for a job that requires that specific degree formulation as its minimum prerequisite.  This interim final rule also imposes a new definition of “employer-employee” relationship, limits the validity periods for H-1B workers placed at a third-party worksites, and imposes additional requirements on both staffing companies and their clients.

Both rules have been issued as Interim Final Rules, which makes them vulnerable to litigation based on the agencies’ bypassing of notice and comment, particularly as the delays in passing the rules have not been explained.  The overall injury and disruption to employers and divergence of the wage levels from actual market wages are also likely to form part of the challenges and requests for injunctive relief.

Our full analysis may be found on Mayer Brown’s COVID-19 Response blog.

The White House has announced issuance of two new rules, both of which will take effect immediately upon publication in the Federal Register:

  1.  The Department of Homeland Security’s H-1B rule,  “Strengthening the H-1B Non-immigrant Visa Classification Program,” which has been on the DHS regulatory agenda for many years, including its first appearance in Fall 2017 under the current administration.  It has since appeared in every other regulatory agenda since then, including Spring 2018, Fall 2018, Spring 2019, Fall 2019, and Spring 2020, as summarized on Reginfo.gov.  The DHS announcement about the upcoming rule is included here.
  2. The Department of Labor’s rule increasing prevailing wage requirements for US employers, which apply to the Labor Condition Application filings that accompany H-1B, H-1B1, and E-3 petitions (including amendments and extensions), and apply to PERM labor certifications.  Wage Level 1 will increase from the 17th percentile to the 45th percentile.  Wage Levels 2, 3, and 4 all are increasing substantially above the current 50th percentile for Wage Level 3.  Wage Wage Level 2 will increase to the 62nd percentile; Wage Level 3 to the 78th percentile; and Wage Level 4 to the 90th percentile.  Percentiles are calculated for the specific occupational classification and vary by location (typically the Metropolitan Statistical Area or “normal commuting distance” from the job location).

Both rules will be Interim Final Rules, which makes them vulnerable to litigation based on the agencies’ bypassing of notice and comment, particularly as the delays in passing the rules are not explicable.  The overall injury and disruption to employers and divergence of the wage levels from actual market wages are likely to form part of the challenges and requests for injunctive relief.  The Northern District of California’s recent grant of an injunction enjoining the White House’s suspension of H-1B, L-1, and J-1 visas was premised on this type of injury, as reported in our COVID-19 blog post.

The DOL rule, which DOL indicates is required “to adjust the existing wage levels to ensure the levels reflect the wages paid to U.S. workers with levels of experience, education, and responsibility comparable to those possessed by similarly employed foreign workers,” repudiate the use of the government survey data (the OES Survey) which DOL has used since 1990, and it substitutes a new construct for calculating the wage that relies in part on statistics that some employers pay H-1B workers wages that are higher than the legacy prevailing wages.  DOL also takes the posture that it will continue to use the OES data but recalculate the wage levels to exclude the lower-paid workers included in any category, alleging that lower-paid workers have lower skills or lesser academic credentials and so should not be included in the wage analysis.

As a result, DOL has created its own construct to dramatically shift the percentile allocations for wages, premised on what appears to be a largely conceptual approach and no documented objective source for the wage percentile deviations.  Nor does the DOL rule reconcile why a sudden departure from the legacy wages on which employers have relied should be authorized, without notice and comment.

The Ninth Circuit Court of Appeals, in a divided decision, vacated a preliminary injunction issued by US District Judge Edward Chen in 2018 that prevented the administration from ending Temporary Protected Status (TPS) for immigrants from Haiti, El Salvador, Nicaragua, and Sudan. The panel remanded to the district court for further proceedings.

The TPS program was first introduced by Congress in 1990, a protection offered to citizens of countries experiencing natural disasters, protracted unrest, conflict or other “extraordinary circumstances” to stay in the United States and be protected from deportation. More than 300,000 people from 10 different nations currently use the program, some of whom have lived and worked in the United States for decades.

The court held that the Trump administration had “full and unreviewable discretion” to terminate TPS.  The ruling could also allow the administration to finalize its decisions to end TPS for individuals from Honduras and Nepal.

In view of this ruling, Partner Paul Virtue noted in Law360:  “I’m not surprised. If the administration has the authority to grant Temporary Protected Status, then they certainly have the authority to terminate it”.

The court of appeals ruling means that TPS holders may lose their permission to stay and work in the U.S. in 202. However, the case is likely to be appealed to the Supreme Court, which could delay the outcome.  Thus, another lawsuit is before the Second Circuit concerning 40,000 Haitian TPS recipients, and many advocates are hopeful that the Democratic presidential candidate, if elected, will reverse these policies.

Please continue to follow our blog for up-to-date information, as well as recent rulings on TPS protections.

 

COVID-19 developments, including the White House ban on green card applications made at US consulates abroad, economic changes, and reduced cross-border travel, reduced the volume of applications for immigrant visas in recent months, creating excess supply in employment-based (EB) immigrant quotas.

As a result, the US Department of State (DOS) adjusted the EB quotas to allow certain individuals who previously faced lengthy waits of up to multiple years to file for adjustment of status (AOS) to US permanent residency in the month of October 2020.

Continue Reading Executive Summary: The Gate to US Permanent Residency Opens in October 2020

On Tuesday, September 29, 2020, Federal District Court Judge Jeffrey White issued an order 2020-09-29 Order Granting dckt 98_0 enjoining US Citizenship and Immigration Services (“USCIS”) and the Department of Homeland Security (“DHS”) from implementing proposed increases in filing fees, and the addition of a controversial filing fee for asylum, scheduled to become effective on October 2, 2020.  Finding that the succession rules had been improperly modified with the departure of former DHS Secretary Kirstjen M. Nielsen in April 2019, Judge White became the second judge this month to preliminarily enjoin a regulation promulgated under the authority of the acting officials.  The substantial increases in fees were proposed by “Acting DHS Secretary,” Kevin K. McAleenan, and published as a final rule under the purported authority of “Acting DHS Secretary,” Chad Wolf, and “Senior Official Performing the Duties of Deputy Secretary of Homeland Security, and USCIS,” Kenneth T. Cuccinelli.  The Appointments Clause of the Constitution authorizes the President to nominate “Officers of the United States,” such as DHS Secretary.  The President’s authority is balanced by the Senate’s advice and consent power.  While Secretary Nielson resigned her position in April 2019, the President’s nominee to replace her, Mr. Wolf, was not submitted for Senate confirmation until September 10, 2020.

The plaintiffs are eight non-profit organizations that provide a variety of “services benefiting low-income applicants for immigration benefits  Plaintiffs allege that Messrs. Wolf and McAleenan had been appointed to their “acting” positions in violation of the Homeland Security Act (“HSA”) and the time limitations on service contained in the Federal Vacancies Reform Act (“FVRA”).  Under the FVRA, the “first assistant” to the vacant office “shall perform the functions and duties of the office temporarily in an acting capacity subject to the time limitations of section 3346[.]” 5 U.S.C. §3345(a)(2)(3).  The temporary appointee must, for example, have served in the first assistant position for the 365 day period preceding the vacancy. The temporary appointment is limited to 210 days from the date of the vacancy; or once a nomination is submitted, for the period the nomination is pending with the Senate.  In December 2016, Congress amended the HSA to provide that the Secretary of Management “shall be the first assistant to the Deputy Secretary for purposes of the FVRA.

Citing a decision earlier this month by US District Court Judge, Paula Xinis, (D. MD) and following the same logic, Judge White found that Plaintiffs are likely to prevail on their claim that the succession orders executed by Secretary Nielsen at the time of her resignation were ineffective for the appointment of Mr. McAleenan, as acting Secretary, and consequently that Mr. McAleenan’s effort to position Mr. Wolf as acting Secretary was similarly unavailing.

Assuming that Mr. Wolf is confirmed as Secretary by the Senate, he should be in a position to issue the new fee rule, but DHS will likely have to begin the process anew at the Notice of Proposed Rulemaking stage, as Mr. McAleenan lacked the authority at the time he signed off on the proposed rule.